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IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE,
R.S.O. 1970, CHAPTER 318, AS AMENDED,
AND IN THE MATTER OF the complaint of Mrs. Sylvia
Fuller against Candur Plastics Limited
BOARD OF INQUIRY
Robert W. Kerr
MINISTRY OF LABOUR
MAY 2 8 1981;
Ms. Janet Minor )
Ms. Leith Hunter )
Counsel for. the Ontario Human
Rights Commission and the
Complainant, Mrs. Sylvia Fuller
Robert Falby )
Allan Kling )
Counsel for the Respondent,
Candur Plastics Limited
Dates of Hearing )
April 28 and 29, 1981
Place of Hearing )
10 Wellesley Street East,
The complainant, Mrs. Sylvia Fuller, is a black person of Jamaican
origin. She was employed by the respondent, Candur Plastics Limited, from
August 14, 1978 to March 28, 1979. Following the end of her shift on the
latter date, she was dismissed. The complaint alleges that this dismissal
was because of the race, colour, nationality, ancestry and/or place of
origin, of the complainant and therefore constitutes a violation of section
4 (1) (b) , (c) and (g) of the Ontario Human Rights Code, R.S.O. 1970, c. 318,
The respondent manufactures a variety of molded plastic containers.
Each type of container is mass-produced by an automated molding machine.
The finished containers, however, are manually inspected and packed into
boxes. The respondent operates three shifts a day, Monday to Friday. Each
shift is under the supervision of a foreman. There is also a person known
as a forelady on each shift who has certain supervisory responsibilities
on the shop floor, although this position appears rather more that of a
lead-hand, than that of a true member of management. In addition to the
forelady, there are a variable number of employees (approximately 8 to 12)
on the shop floor, each of whom is assigned on a rotation-basis by the forelady
to inspect and pack the output of a molding machine.
The complainant was employed on the afternoon shift (4:00 p.m. to 12:00
midnight) to inspect and pack containers. The foreman on this shift was
Egon Ledermann. On March 26, 1979, the position of forelady was assumed by
Christine Thuilliard. Dulcie Atkins, another black person of Jamaican origin
and a personal friend of the complainant, had expected to receive this promotion
since she had seniority among the workers on the shift and was recommended by
the previous forelady. As a result, certain ill-feelings were generated.
Although the exact course of events is in dispute, it does appear that
sometime on March 27 and/or 28 one or more incidents of actual or threatened
physical conflict occurred between the complainant and Mrs. Thuilliard as a
by-product of this ill-will. Whatever such incidents may have involved, at
about the mid-point of the shift on either March 27 or March 28, the complainant
reported to Mr. Ledermann that Mrs. Thuilliard had slapped her on the face.
Because of the complainant's emotional state at the time and her rather
strong Jamaican accent, she was unable to make Mr. Ledermann understand her
grievance. In an effort, as she says, to demonstrate, the complainant slapped
Mr. Ledermann on the face. Mr. Ledermann subsequently obtained clarification
of the complainant's grievance through Mrs. Atkins. The complainant returned
to work. At the end of her shift on March 28, Mr. Ledermann advised her that
she was fired. She appears not to have been given reasons for her dismissal.
At the hearing the reason for dismissal offered by the respondent's
witnesses was the fact that the complainant had slapped Mr. Ledermann, her
supervisor. It was denied that her race, colour, nationality, ancestry, or
place of origin had been a factor.
At the outset, it should be made clear that under section 4 of the Human
Rights Code it is sufficient to constitute an offence if a prohibited factor
is one of the grounds of the employer's decision. It is not even necessary
that the prohibited factor be a major element in the decision, as long as it
an operative element. I am buttressed in this conclusion by the decision in
v. Bushnell Communications Ltd. (1973) ' f 1 O.R.(2d) 442 (H.C.j, affirmed
(1974), 4 O.R. (2d) 288 (C.A.), dealing with comparable use of the words
"because of" in the Canada Labour Code, R.S.C. 1970, c. L-l , s. 110 (3).
In determining the operative elements in a decision, the first step
is to identify the decision-maker. In this case, it is clear that, although
the owners of the respondent, Dieter Sander and Uwe Meyer, made hiring
decisions at the time relevant to this case, all subsequent decisions on
employment status, such as lay-off, recall and dismissal, were left in the
hands of the foreman of the shift concerned. Thus, it is Mr. Ledexmann's _7
motivation that must be focused upon in this case.
Once the decision-maker is identified, a common problem in such cases is
that the real reasons for the decision are known only to that person. As
was stated in Kennedy v. Mohawk College (Ontario Board of Inquiry, Borins,
1973) at 4-5:
Discrimination on the grounds of race or colour are frequently
practised in a very subtle manner. Overt discrimination on these
grounds is not present in every discriminatory situation or occurence.
In a case where direct evidence of discrimination is absent, it
becomes necessary for the Board to infer discrimination from the
conduct of the individual or individuals whose conduct is in issue.
This is not always an easy task to carry out. The conduct .alleged
to be discriminatory must be carefully analysed and scrutinized in
the context of the situation in which it arises. In my view, such
conduct to be found discriminatory must be consistent with the allegation
of discrimination and inconsistent with any other rational explanation.
This, of course, places an onus on the person or persons whose conduct
is complained of as discriminatory to explain the nature and purpose
of such conduct. It should also be added that the Board must view the
conduct complained of in an objective manner and not from the subjective
viewpoint of the person alleging discrimination whose interpretation
of the impugned conduct may well be distorted because of innate
personality characteristics, such as a high degree of sensitivity
or def ensiveness .
Some overt evidence of discrimination was tendered in this case in the
complainant's testimony that Mrs. Thuilliard had called her a "monkey" with
specific reference to the event of dismissal, and had acknowledged this to be
a reference to the complainant's colour. Mrs. Thuilliard denied this, but if
the complainant is believed the inference is possible that Mrs. Thuilliard
influenced the decision to dismiss and her influence was based on the complainant's
colour. While this possibility does exist, there was no evidence before me
that Mrs. Thuilliard influenced the decision to dismiss the complainant. As
already noted, the nature of her position seemed to be more in the nature of
a lead-hand, notwithstanding the designation of forelady given to her. Thus,
even if Mrs. Thuilliard herself was influenced by racial bias, this did not
make it an operative element in the dismissal.
It is also possible that the epithet allegedly used by Mrs. Thuilliard
created a discriminatory condition of employment which violated the Human Rights
Code independently of the decision to dismiss. However, on the evidence, before
■ • _
me, at most this was only shown to be "an isolated offensive outburst" by
another employee. Such an occurrence does not put the employer in violation of
the Code even where the other employee is in a supervisory position: Simms v.
Ford of Canada (Ontario Board of Inquiry, Kreever, 1970) at 18.
This leaves me with the task of determining whether there was discrimination
from a careful and objective analysis and scrutiny of the conduct which occurred
in its context, as stated in the Kennedy case.
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In accord with obligation upon the Board of Inquiry to examine the
circumstances objectively, it is often useful to compare the treatment of
a person who complains of unlawful discrimination with the treatment of other
employees in similar circumstances where an obvious variable is the factor
which is alleged to be the basis of discrimination. This approach is not
very helpful in this case, however, since both the complainant's conduct which
the respondent claims to be the real basis for its action and the respondent's
action seem virtually unprecedented.
The complainant admits that she did slap her supervisor, albeit lightly
and at what she interpreted to be his invitation to do so . It is also clear
that the complainant and Mr. Ledermann were having difficulty communicating
at the time so that a misunderstanding between them over whether such an
invitation was given was not surprising. It is a plausible explanation that,
because of this misunderstanding, the complainant was dismissed for doing
something she thought she was privileged to do. This might be unfair, but on
such an interpretation there would be no violation of the Human Rights Code.
Since the striking of a supervisor by an employee was, so far as the
evidence went, unprecented for the respondent, no comparison can be made as
to whether other incidents were dealt with in the same way.
Similarly, the respondent appears to have had no prior experience with
the dismissal of employees. One incident of subsequent dismissal of Mrs. Atkins
was referred to in the evidence, but the circumstances seem so different that
any comparison would be extremely tenuous. Since Mrs. Atkins is also a black
person of Jamaican origin, it might be inferred that this reinforces the
allegation of unlawful discrimination. However, the circumstances were not
extensively explored in the evidence and I am not prepared to make such an
inference on the evidence before me. Without other incidents of dismissal,
a comparison cannot be made as to whether the criteria used by the respondent
in such cases support its contention that the complainant's dismissal was
fully explicable without reference to unlawful considerations. The very lack
of other dismissals might suggest that no such criteria existed and in itself
produce an inferrence of unlawful discrimination. In light of the complainant's
own unprecedented action, however, I conclude that the unprecedented nature
of the respondent's dismissal of her is not sufficient to support a finding of
The closest similar event that was related in the evidence was an incident
of fighting between Mrs. Atkins and Laurie LaMarsh, a co-worker who quit
shortly before the complainant was dismissed. Both Mrs. Atkins and Ms. LaMarsh
were suspended for what appears initially to have been a three-day period,
but they were brought back after one-day when they undertook not to repeat the
incident. The treatment of the two participants on that occasion appears non-
This incident has enough in common with that involving the complainant
that it provides some basis for comparison. However, this comparison does not
lead very far because characteristics of the parties which are prohibited as
grounds for discrimination were a constant factor, rather than a variable.
Both incidents involved a black person of Jamaican origin in conflict with a
white person of Canadian origin. The complainant was treated differently from
everyone else involved in the two incidents. Since prohibited factors were
constant between the two incidents, the logical inference from a comparison
would be that some factor other than a prohibited one led to the difference
The major variable that presents itself is that the complainant came
into conflict with supervisory personnel, both in the initiating incident with
Mrs. Thuilliard and in the subsequent meeting with Mr. Ledermann . The early
incident involved only two ordinary employees. To some extent, therefore,
this comparison tends to support the respondent's explanation that it
was a physical assault on a supervisor which singled the complainant out
On the other hand, this comparison also underlines a sharp contrast
in treatment between Mrs. Thuilliard and the complainant. At the time in
question, the complainant had reported that Mrs. Thuilliard had slapped her.
On the witness stand, Mrs. Thuilliard 's side of the story was that the
complainant had grabbed her on the chin, although I have some doubts as to
the credibility of this both because the testimony of Wesley McKenzie, the
Commission's investigator, contained no reference to any such allegation in
his interview with Mrs. Thuilliard and because a grabbing of the chin is
physically awkward and thus a rather unlikely form of aggressive contact.
In any event, viewed most favourably from the respondent's perspective, Mr.
Ledermann was presented with conflicting versions of a conflict between the
complainant and Mrs. Thuilliard.
Mr. Ledermann testified that he investigated the matter by asking the
other workers if they had seen what happened. None admitted to having seen
anything. As a result, Mr. Ledermann was left with one employee's word against
another. While the severity of the action taken to dismiss the complainant
might be explained by her subsequent slapping of Mr. Ledermann himself, the
total absence of any further action upon the complainant's allegation that
she had been slapped by Mrs. Thuilliard called for some explanation. None was
Since, as previously noted, Mrs. Thuilliard was more of a lead-hand
than a true member of management, it is doubtful that her supervisory position
justified treating the complainant's allegations against her as unimportant.
The complainant testified that she suffered pain as a result of the slapping,
and this was supported by the fact that she consulted a doctor. In the absence
of a witness, therefore, Mr. Ledermann might at least have sought some medical
or para-medical advice on whether the complainant's allegations could be
corroborated. It appears he simply accepted Mrs. Thuilliard' s word and
rejected that of the complainant, which was hardly even-handed.
In the final analysis, the process of comparison resolves nothing.
On the one hand, it supports the respondent's explanation because of the even-
handedness of the "earlier treatment of Mrs. Atkins and Ms. LaMarsh. On the
other hand, it raises an unexplained differential in the treatment of Mrs.
Thuilliard at the time of the complainant's dismissal.
This leaves the case to be resolved essentially on the basis of the
credibility underlying the explanation of the complainant's dismissal which
was offered by the respondent.
If this explanation is credible on the whole of the evidence, there would
not appear sufficient evidence that other unlawful factors also affected the
complainant's dismissal. If this explanation is not credible, however, an
inference of discrimination may arise. The dismissal would be "consistent with
the allegation of discrimination and inconsistent with any other rational
explanation", in the words of the Kennedy decision, since the one potentially
rational explanation would have been found not credible.
I would note that the appropriateness of the standard just quoted from
the Kennedy case is questionable. It appears more consistent with the
requirements of proof beyond a reasonable doubt, than with proof on the balance
of probabilities which is the onus on the Commission under the Code. However,
it is not necessary for me to resolve this question since the matter does
resolve itself into the credibility of the only alternative rational explanation
that was offered. I do not think it can be disputed that any such explanation
must be not only rational, but also credible on the whole of the evidence.
On the whole of the evidence, I do not find the explanation offered by
the respondent to be credible. In the first place, it is evident that the
reason for dismissal was never made known to the complainant. It can happen
that an employer's mind is itself unclear as to the reasons for dismissal of
an employee because the action is based on a cumulation of incidents of which
no one is decisive. However, I find it hard to believe that, where a dismissal
is based on a clear, discreet event, as this one was alleged to be, the decision-
maker would not attempt to immediately justify the decision to the employee.
The fact that the reason now alleged was not offered at the time strongly
suggests that it was not perceived as the reason at the time.
Secondly, while Mr. Ledermann was left with the discretion to decide
what action to take with respect to the complainant, it is apparent that his
superiors, Mr. Sander and Mr. U. Meyer, were aware of events immediately after-
ward, and became even more involved a few weeks, later when contacted by the Ontario
Human Rights Commission. It seems that they were under the impression at the
time that the complainant had been dismissed for fighting with another employee,
namely, Ms. LaMarsh, who had quit about the same time. Moreover, they continued
to be under this impression until sometime after the Commission's investigation
was underway. Again, it seems hard to believe that, if Mr. Ledermann had based
his decision on the complainant's act of slapping him, he would have left his
superiors under this impression.
Mr. McKenzie testified that Mr. Ledermann, when interviewed by Mr.
McKenzie, first named fighting as the reason for the complainant's dismissal.
It was only toward the end of the interview that Mr. Ledermann raised the
slapping incident. I have no reason to doubt the accuracy of Mr. McKenzie 's
report of the interview since he relied heavily on notes that were taken at the
time. This sequence in the interview further confirms that Mr. Ledermann did
not perceive the slapping incident as the reason for dismissal.
Finally, on the witness-stand, Mr. Ledermann went to some lengths, indeed
lengths which were barely credible, to emphasize that the complainant did
not do her job satisfactorily. This also suggests that the slapping incident
was not the real reason for dismissal. While poor performance in itself would
be a lawful reason for dismissal, Mr. U. Meyer testified that they did not fire
people for being poor workers, but rather laid them off when work was short.
Thus, if this were the real basis of the complainant's dismissal, there would
be a strong case for inferring unlawful discrimination by comparison with
I find, therefore, that the slapping of Mr. Ledermann was not the real
reason for the complainant's dismissal. This leaves, then, the question of
whether on careful analysis and scrutiny I draw the conclusion that her race,
colour, nationality, ancestry or place of origin was the real reason or a part
of the real reason.
I am not inclined to the view that such unlawful considerations formed the
major basis of the decision. Rather I think that a combination of factors played
a part. For one thing, I think, Mr. Ledermann was bothered by the difficulty
he had in understanding the complainant. The complainant is highly emotional,
and uses crying as a means of emotional release. This probably annoyed
Mr. Ledermann. I am also inclined to believe he did not think highly of her
In addition, I am satisfied that Mr. Ledermann was unhappy with the some-
what lax way in which Mrs. Thuilliard's predecessor dealt with her co-workers
and was pleased by the way in which Mrs. Thuilliard took command. Out of
this, I think he was upset by the complainant's attitude towards Mrs. Thuilliard'
promotion to forelady. I think he saw some risk that things might get out of
hand and saw an opportunity to resolve a number of his frustrations and put
a dampener on potential defiance by making an example out of the complainant
through her dismissal. None of this in itself violated the Human Rights Code.
However, I am also persuaded that, in dealing with the complainant,
Mr. Ledermann picked upon her as an example because he did not hold her in
proper regard as a person, and that her race, colour and place of origin were
factors in his view of her. I think this is the only conclusion consistent
with the abrupt and summary way in which he dismissed her. The complainant
was, therefore, dismissed in part because of her race, colour and place of
origin in violation of section 4 (1) (b) of the Ontario Human Rights Code.
During the hearing a great deal was made of a conflict in evidence over
the date on which the complainant slapped Mr. Ledermann. The complainant
testified that it occurred on March 27, a full day before her dismissal. The
respondent's witnesses were quite firm that it occurred on March 28, during the
shift at the end of which the complainant was fired. I do not think that the
resolution of this dispute is necessary for I find the explanation that the
slapping of Mr. Ledermann was the reason for the complainant's dismissal is not
credible, regardless of the date of this incident.
The only other relevance of this issue goes to the credibility of the
individual witnesses who testified to this item. Notwithstanding the importance
of this incident to the whole matter, I do not think that a mistake such as
this on a date provides a sufficient basis for determining the credibility of a
witness. The human mind is just too prone to erroneous time associations, even
after a relatively short period of time. If the respondent's witnesses, three
of whom addressed the date, were mistaken, I would not on this basis alone
conclude that they were otherwise unreliable.
With respect to the complainant's testimony, it is quite possible that,
even fairly soon after the events, she associated them in a shorter time
frame than they actually involved. It is possible, for example, that the
incident with Mrs. Thuilliard happened on March 27, but that the complainant's
grievance to Mr. Ledermann during which she slapped him actually occurred
the following day. Again, I do not think this would mean I should find her
evidence generally unreliable .
On the contrary, I am favourably impressed by the complainant's testimony.
Because she does not read English, she was unable to read the complaint form and
attest to the facts as stated therein for the record. This is a practice
commonly followed in such hearings. The respondent's counsel objected to having
the form read to her for this purpose because it would lead the witness rather
extensively. Since there seemed no reason why the same evidence could not be
introduced by means of simple question and answer, I allowed the objection. As
a result, the complainant testified without the benefit of a reminder of what
she had stated in her complaint. Her evidence did not differ in any significant
way from what was recorded by the intake officer who received her complaint over
two years earlier. This very much persuades me as to the reliability of her
testimony as a whole.
On the matter of remedy, counsel for the respondent indicated he would like
to reserve the right to make further submissions as to remedy, particularly with
respect to the amount of unemployment benefits received by the complainant, in
the event the merits were found against the respondent. I suggested that it
might be an appropriate case for me to give counsel an opportunity to settle
the amount of the av/ard in accordance with such rulings I might make on the
nature of the remedy, with leave to apply to me for a final determination
in the event they were unable to settle the amount. On consideration, however,
the amount of the award appears so simple to calculate that it seems preferable
for me to settle the amount of the award with leave to apply for reconsideration
in the event that counsel are of the opinion that I have erred.
The complainant is entitled to loss of wages during the period from her
dismissal until the time when her employment would otherwise have terminated,
subject to mitigation. None of the respondent's witnesses offered any evidence
of any development that would have terminated the complainant's employment,
subsequently, had she not been dismissed on March 28. This leaves the evidence
of the complainant who testified as to two relevant events- One was that she
visited Jamaica in August, 1979, to look after her mother who was ill. At
this time unemployment benefits which she received after dismissal were cut off.
The second event was that she obtained a similar job on October 15, 1979 which
would appear to have completely mitigated her losses.
The complainant's visit to Jamaica would have constituted a quit if she
had still been employed by the respondent at the time. In view of the high
turnover and low skill requirements of the respondent's employees, I am satisfied
that it is unlikely that the complainant would have been rehired on her return
from Jamaica. Moreover, it is unlikely a case could have been made out that
such a refusal to rehire was discriminatory. I am not as certain that the
respondent would have gone to Jamaica if faced with the possible loss of her
job, rather than a mere loss of unemployment benefits. However, on the balance
of probabilities, I think it likely that she would have. Thus, I would award
loss of wages for the period from March 29, 1979 through July 31, 1979
inclusive. The exact dates of the complainant's trip to Jamaica were not
established. The complainant testified that it occurred in August and I must
therefore exclude that entire month in the absence of more specific evidence.
The complainant testified that her wages were $3.75 an hour at the time of
dismissal. However, in suggesting a calculation to me, counsel for the Commission
used the figure of $3.50 an hour. Since the complainant's memory of such
details was not too definite, I regard counsel's representation, presumably
based on the Commission's investigation, as an admission that $3.50 is the
appropriate rate, for a weekly pay of $140. The period in question consists
of 18 weeks, less one day. Thus, the total loss of wages is $2492.
Collateral benefits and deductions such as unemployment benefits and tax
deductions are not relevant to the rights as between the parties, so I make
no deduction for such items. It is possible, for example, that this award may
give rise to a claim for overpayment from the Unemployment Insurance Commission
which would upset any calculations taking unemployment benefits into account.
In light of the irrelevance of such benefits, I see no prejudice to the
respondent in my not granting counsel's request that I reserve decision for
further submissions on the amount of such benefits.
With respect to other questions of mitigation, I am satisfied that the
complainant conducted an adequate search for alternative employement. No
deduction for failure to mitigate is called for.
In addition to loss of wages, counsel for the Commission requested
compensation for humiliation to the complainant and an order directing the
respondent to provide to the Commission an assurance of future compliance with
No evidence was presented to me of any actual humiliation or other
injury to feelings experienced by the complainant as a result of her dismissal.
On the other hand, the lack of sensitivity with which she was treated at
the time of dismissal must have caused her some anguish. I would award the
amount of $100 as compensation for injured feelings. This is intended to
be more than a nominal sum, but to reflect also the fact that no substantial
injury was proved. At today's values, this is not much more than a nominal
sum. However, in the light of the recent awards in Imberto v. Vic and Tony
Coiffure (Ontario Board of Inquiry, McCamus, 1981) , and Bish v. Chez Moi Tavern
(Ontario Board of Inquiry, Haynes, 1981) , both of which awarded $100 under
this head, I do not think I should award a larger amount without substantial
evidence of the complainant's actual suffering, as was present in the other
recent such decision in Cousens v. Canadian Nurses Association (Ontario Board
of Inquiry, Ratushny, 1981) .
Finally, in light of the fact that the violation of the Code in this case
arose out of a nearly complete discretion given to the foreman in personnel
decisions after the initial hiring, and in light of evidence that the respondent's
owners did not take the matter seriously until the Commission's investigation
was well underway, I think this is an appropriate case to require that an
assurance of future compliance be given. While the owners, Mr. Sander and
Mr . U. Meyer, may be sufficiently impressed with the importance of the Code's
requirements by this decision itself, the giving of an undertaking should help
in ensuring that they will also impress this upon those to whom personnel
responsibilities have been delegated. In furtherance of this, I would also
direct that notice of this assurance be given to each employee with responsibility
for personnel matters.
For the reasons set out above, I order as follows:
1. It is ordered that the respondent pay the sum of $2492 for loss of wages
by the complainant and $100 for injured feelings of the complainant.
2. It is ordered that the respondent forthwith send a letter of assurance
to the Ontario Human Rights Commission, undertaking to comply with The
Ontario Human Rights Code in the future, and give notice of this letter
to each of its employees having responsibility for personnel matters.
Counsel may apply for reconsideration of the calculation of loss of
wages, upon notice to the other parties.
DATED at Windsor this 26 day of May, 1981.
Robert W. Kerr
Board of Inquiry